This paper has two purposes.
First, it argues that the enforced disappearances, murder, and
torture that occurred in Sri Lanka constitute a crime against
humanity. And second, it argues that an international tribunal
must be established to address these atrocities because the legal
system within the country is currently incapable of effectively
prosecuting these crimes.

The actions that occurred in Sri
Lanka clearly constitute crimes against humanity.

For an action to constitute a
crime against humanity, several requirements must be met: it must
be one of a limited number of crimes generally considered to
warrant the label; it must be widespread or systematic in nature;
and it must involve the government. The crimes against humanity
enumerated in international instruments include murder, torture,
enforced disappearance, extermination, arbitrary imprisonment,
and persecution on political grounds. Each of these crimes was
committed in Sri Lanka. Mass graves, torture chambers, illegal
detention centers, testimony from the families of thousands of
missing persons, and the government's goal of removing political
opposition testify to it.

Furthermore, these crimes were
committed on a widespread scale. The Sri Lankan government has
estimated that there were over 26,000 victims, while unofficial
estimates put the number as high as 60,000. It is also clear that
these crimes were part of a systematic attack planned at the
highest levels of government and implemented through the police
and army. There can be no doubt that a crime against humanity has
occurred.

Despite the seriousness of the
crimes and the enormous number of victims, these crimes against
humanity have not been effectively addressed. The entire legal
system was used in the campaign of disappearances making internal
prosecution impossible despite the efforts of the new government.
The fact-finding commissions established by the government have
uncovered information on appalling atrocities, but little action
has been taken. Similarly, the interventions that UN agencies
have made thus far have proven insufficient. More decisive action
is required.

To address these crimes
effectively, an international tribunal must be established. Both
the seriousness and the number of offenses warrant such an
approach. Recently, the International War Crimes Tribunal in The
Hague sentenced a former Bosnian Croat general to 45 years in
prison for the deaths of 100 people. The deaths of 30,000 Sri
Lankans are no less valuable. Only with greater international
assistance, preferably in the form of establishing an
international tribunal, can the perpetrators be brought to
justice and a sense of law and order restored in Sri Lanka.

II. Foreword: undisputed facts

It should be highlighted at the
outset that these facts are not disputed by the government of Sri
Lanka. Most of the disappearances occurred under a former
government, and after a new government came to power, it
established several fact-finding Commissions of Inquiry into the
Voluntary Removal or Disappearance of Persons. The information
here is drawn from the Interim Reports and Final Reports of these
Commissions. [1]

Forced disappearances in
Sri Lanka constitute a crime against humanity

A large number of
disappeared persons: estimates range from 26,877
to 60,000persons

A large number of child
victims: approximately 15% of victims were
children below the age of 19

Involvement at the
highest political levels: the entirety of the legal
enforcement mechanism was utilized

The methods utilized:
illegal detention and torture centers

The purpose of the
enforced disappearances: extrajudicial killing and
elimination of evidence

The disappearance of tens of
thousands of people in Sri Lanka was not a campaign by a hostile
foreign enemy, nor was it part of a bloody civil war or
revolution. It was a campaign by a democratically-elected
government to remove opposition. The victims need not have even
been involved with insurgents, attending a meeting or a speech,
or even reading a book, was sufficient to be targeted for
extrajudicial killing. Many of the victims were outside the
insurgency movement; some victims were simply members of legally
recognized opposition parties. Many were just children.

The police and army came for the
victims not only at night, but at any time of the day.[2]
Sometimes, the victims were abducted by
men who came in unmarked cars and acted with impunity. Sometimes,
the victims were arrested for questioning and subsequently
disappeared, what may be called "voluntary removal." In
the town of Trincomalee, residents were told to report to a
stadium one morning, and police then picked certain persons out
of the crowd, blind-folded them, and transported to Plantain
Point Army Camp. One victim who was released told of the torture;
other victims were never heard from again, despite inquiries by
their families. [3]

As this example illustrates, the
victims in Sri Lanka were not only abducted, but were normally
murdered and often tortured as well. A commission established Sri
Lanka stated, "Disappearance is in our finding only a
euphemism for a killing, a reality that the absence of recovery
of the body should not be allowed to obscure." [4]In fact, death certificates
have been issued for persons where the Commission has been
satisfied that they had been involuntarily removed, and
compensation has been paid to the victims' families.[5]
Many of the bodies have been recovered,
however, in over a dozen mass graves.[6]
There have also been instances of
mass executions. A well-known instance is the massacre at
Mahawatte, Kandy, where at least 54 persons were killed in one
night.

Many of the bodies showed signs
of torture. In some cases, the government sought to have the fact
of torture be common knowledge. Disfigured heads and bodies were
displayed openly to serve as a warning to the public. Such
atrocities became commonplace.[7]
The existence of at least eight such
torture chambers was discovered by a Commission investigating
disappearances in four provinces.[8]
At a torture chamber at St. Sylvester's
College in Kandy, evidence showed that about 1,000 persons were
detained in this camp and systematically tortured before being
taken away and killed.[9]

Perhaps most disturbingly, 15% of
victims were children below the age of 19.[10]

The ruling party has a perception
that the JVP targeted outstanding youth at the village level, and
this perception was enough to cause the government to
indiscriminately eliminate outstanding youth at the community
level. The police and army would sometimes take young girls in
place of fathers, and often children were abducted and killed
along with their parents. Sometimes, the motives were personal,
as in the abductions of young girls for sexual abuse, and the
breakdown of the system allowed officials to act with impunity.[11]Any assertions by the
government that their actions were compelled by an interest of
self-defense and a need to maintain control against insurgent
Janatha Vimukthi Peramuna (JVP) appear ludicrous in the face of
slaughter of children.[12]

These acts of violence were
perpetrated on the authority of the government, and involved the
entire legal enforcement machinery. Leading politicians, such as
a Chief Minister of a Province and a Cabinet member on the
government, have been named as playing a part in removals.[13]
Two senior officials, one from the police
and one from the army, have testified under oath of the role
played by politicians of the governing party preparing
"lists" of names for executions.[14]
A Commission established by the
government stated that it was of the opinion that the
disappearances/killings of these persons have been with the
knowledge and tacit approval of the Government in power at that
time.[15]

The widespread government
involvement can be seen in the impunity with which the police
acted, and the existence of multiple illegal detention and
torture centers. The abductions often occurred during the day
with men taking victims away in unmarked cars. Mourning families
filed missing person reports and made personal pleas at the homes
of government officials for information on their loved ones, all
to no avail. One father stated, "I went to the police 76
times, but we were driven away like dogs."[16]
Cases of disappearances were dismissed
without criminal investigation.[17]

Although not as common as in the
late 1980s, disappearances continue today. And despite government
commissions appointed to study the disappearances, most of the
perpetrators have not been put to justice. The international
community must act on this crime against humanity.

The actions of the
government constitute crimes against humanity

1. Comparison to other
crimes against humanity

Other recently condemned
violations of human rights pale in comparison to the widespread
nature of the atrocities in Sri Lanka:

The International War Crimes
Tribunal in The Hague recently sentenced Former Bosnian
Croat general Tihomir Blaskic to 45 years in prison for
his key role in an incident where more than 100 people
were killed.[18]

The Düsseldorf High Court
last year sentenced former leader of a paramilitary Serb
group Nikola Jorgic to life imprisonment. He had been
convicted in 1997 of eleven counts of genocide and 30
counts of murder.[19]

The British House of Lords
recently ruled that Former Chilean dictator General
Augusto Pinochet could be extradited for the crimeof
torture. The total number of dead or disappeared was
3197, but Pinochet benefited from immunity as head of
state for almost all of the crimes committed under his
regime.[20]

Despite the much larger number of
victims in Sri Lanka than in any of these incidents, the
disappearances there have not attracted the same amount of
international attention and outrage. This is especially
inexplicable when seen in light of the similarities with the case
of General Pinochet. Both situations involved large-scale
disappearances, torture, and murder at the hands of government
officials. However, whereas there were about 3000 victims of the
Pinochet regime, there have been over 30,000 in Sri Lanka.
Although he has yet to stand trial due to his physical condition,
the case of General Pinochet of Chile has aroused a level of
international attention that the case of disappearances in Sri
Lanka has lacked. The enforced disappearance of approximately
30,000 must be treated and addressed like the crime against
humanity that it is.

2. Legal basis for crimes
against humanity

The disappearance, and attendant
torture and murder, of tens of thousands of people in Sri Lanka
constitutes a crime against humanity. Both common sense and
international precedent dictate this result. As discussed in
further detail below, the crimes against humanity which occurred
Sri Lanka include

Murder;

Torture;

Enforced disappearance of
persons;

Extermination;

Imprisonment or severe
deprivation of physical liberty in violation of
fundamental rules of law (arbitrary imprisonment); and

Persecution on political,
racial, religious or ethnic grounds.

The occurrence of one of these
crimes, however, does not automatically make it a crime against
humanity.

For any of these actions to be
considered a crime against humanity, two basic elements must be
shown:

Widespread or systematic
nature and

Government involvement.

For example, the
Rome Statute of the International Criminal Court defines
"crime against humanity" as one of a number of
specified acts "when committed as part of a widespread or
systematic attack against any civilian population, with knowledge
of the attack."[21]
Similarly, the Draft Code of Crimes
Against the Peace and Security of Mankind defines "crime
against humanity" as one of a number of specified acts
"when committed in a systematic manner or on a large scale
and instigated or directed by a Government or by any organization
or group."[22]
A somewhat more restrictive definition
can be found in the Resolution Concerning the Establishment and
Statute of the International Criminal Tribunal for Rwanda, which
defines "crime against humanity" as one of a number of
crimes "when committed as part of a widespread or systematic
attack against any civilian population on national, political,
ethnic, racial or religious grounds."[23]

The activity in Sri Lanka clearly
meets the standards, whether broadly or narrowly defined. The
disappearances were certainly widespread in scale, as they
involved tens of thousands of people, and were systematic as
well. A report produced by one of the commissions established in
Sri Lanka states that

The common features of
the narration by thousands of humble petitioners in
respect of thousands of abductions and disappearances
bore powerful witness to the fact that what we were
looking at was an orchestrated phenomenon and not a
series [of] isolated instances explicable in terms of
excesses by individual transgressors.[24]

As discussed in the background
facts section above, the disappearances were clearly orchestrated
by the government against civilians. And, although some
perpetrators took advantage of the lawless situation to commit
crimes for personal reasons, the original motivation was
political and most transgressions had this motivation, as
required by the Statute for Rwanda.

To be considered a crime against
humanity, a crime must be sufficiently serious in degree and be
enumerated in the relevant convention. Reiterating the list
above, the crimes against humanity that are relevant to the
situation in Sri Lanka include murder; torture; enforced
disappearance of persons; extermination; imprisonment or severe
deprivation of physical liberty in violation of fundamental rules
of law (arbitrary imprisonment); and persecution on political
grounds. Any of these crimes individually could constitute a
crime against humanity. The occurrence of several of these crimes
compounds the urgency with which the Sri Lankan situation must be
addressed.

a. The crime of murder

Murder is one of the original
crimes against humanity, dating from the Nuremberg Charter.[25]
The Principles of the Nuremberg Tribunal
provides that certain crimes are punishable as crimes under
international law as crimes against humanity:

Murder, extermination,
enslavement, deportation and other inhuman acts done
against any civilian population, or persecutions on
political, racial or religious grounds, when such acts
are done or such persecutions are carried on in execution
of or in connection with any crime against peace or any
war crimes."[26]

Initially associated with crimes
committed during times of war, crimes against humanity have now
become autonomous crimes.[27]
The Statute of the International Criminal
Court,[28]
the Statute on Rwanda,[29]
and the Draft Code of Crimes Against the
Peace and Security of Mankind[30]
all list murder as a crime in its own
right, dissociated with crimes against peace and war crimes.
There is no doubt that crime of widespread and systematic murder
was committed in Sri Lanka, as evidenced by the mass graves and
the discovery of thousands of bodies.

Not only have crimes against
humanity become independent crimes, the types of actions that
constitute crimes against humanity have expanded since Nuremberg.
Acknowledging this expansion, the Commentary accompanying the
International Law Commission Report concerning the Draft Code of
Crimes Against the Peace and Security of Mankind states:

The definition of crimes
against humanity combined in article 18 is drawn from the
Nürnberg Charter as interpreted and applied by the
Nürnberg Tribunal, taking into account subsequent
developments in international law since Nürnberg.[31]

Crimes such as torture and
enforced disappearance, discussed in depth below, have also
become crimes against humanity.[32]

b. The crime of torture

Torture is one of the most
established crimes against humanity and is defined as a crime
against humanity in the Statute on Rwanda[33]
, the Draft Code of Crimes Against Peace[34]
,and the Statute of the
International Criminal Court.[35]The Statute provides this
definition of "torture":

"Torture" means the
intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include
pain or suffering arising only from, inherent in or
incidental to, lawful sanctions.[36]

The evidence that torture was
committed is plentiful: eyewitness testimony from persons who
were released after detention; the discovery of torture centers;
and physical evidence on the bodies exhumed from mass graves as
well as those on display as public warnings plainly showing the
signs of severe physical pain and suffering. This pain and
suffering did not arise from lawful sanctions. The disappeared
persons were held illegally, and in any event, the physical abuse
evident on the bodies is beyond what could be legally inflicted
upon a prisoner. It is clear that the crime of torture was
committed.

The crime of torture has recently
received much attention due to the high profile accusations
against General Augusto Pinochet of Chile and the recent case
before the British House of Lords seeking his extradition to
Spain. The House of Lords discussed the seriousness of the crime
of torture. Lord Browne-Wilkinson quoted as follows from a case
before the Tribunal for the Former Yugoslavia:

"Because of the
importance of the values it protects, [the prohibition of
torture] has evolved into a peremptory norm or jus
cogens, that is, a norm that enjoys a higher rank in the
international hierarchy than treaty law and even
'ordinary' customary rules."[37]

Quoting an American court, the
Lord continued

International law
provides that offenses jus cogens may be punished by any
state because the offenders are "common enemies of
all mankind and all nations have an equal interest in
their apprehension and prosecution."[38]

The international community must
take action to redress the crimes of torture in Sri Lanka.

Although the international crime
of torture existed at a preeminent level even before enactment of
the Convention, the Torture Convention provided an international
system to prevent the torturer from escaping punishment.[39]
The Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment defines
torture in much the same way as the definition in the Draft Code
discussed above.[40]
It also provides that "[n]o
exceptional circumstances whatsoever, whether a state of war or a
threat or war, international political instability or any other
public emergency, may be invoked as a justification of
torture."[41]The government of Sri Lanka
clearly violated the Convention Against Torture and no excuse is
available for their actions.

International treaties as well as
the Pinochet case clearly support the finding that torture was
committed in Sri Lanka and that this torture constitutes a crime
against humanity. The British House of Lords found that the
atrocities committed under Pinochet, if proven true, would
constitute crimes against humanity and violations of the Torture
Convention, and a different determination by the international
community concerning the disappearances in Sri Lanka would be
completely unfounded.

c. The crime of enforced
disappearance

Enforced disappearance, which
forms the basis of the charges against the Sri Lankan officials,
is also a crime against humanity and is defined as such in
several international instruments. These include the Resolution
on Rwanda,[42]
the Statute of the International Criminal
Court;[43]
and the Draft Code of Crimes Against the
Peace and Security of Mankind.[44]
The Statute Of the International Criminal
Court provides a definition, which is rather standard, for
"enforced disappearance":

[T]he arrest, detention
or abduction of persons by, or with the authorization,
support or acquiescence of, a State or political
organization, followed by a refusal to acknowledge the
deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of
removing them from the protection of the law for a
prolonged period of time.[45]

The disappearances in Sri Lanka
clearly meet these conditions. The victims were either abducted
and detained, or arrested for questioning and then detained.
Authorization and support came from several levels of the
government. Families inquired about missing persons, but the
police and government officials normally refused to acknowledge
the abductions and always withheld information on their
circumstances. The victims were also removed from the protection
of law for prolonged periods of time, usually forever, in fact.
The situation in Sri Lanka clearly meets the definition.

The Inter-American Convention on
Forced Disappearance of Persons of the Organization of American
States also provides support for treating disappearance as a
crime against humanity. The Convention "[r]eaffirm[s] that
the systematic practice of the forced disappearance of persons
constitutes a crime against humanity" and
"[c]onsider[s] that the forced disappearance of persons is
an affront to the conscience of the Hemisphere and a grave and
abominable offense against the inherent dignity of the human
being."[46]
This "reaffirmation" shows that
treating disappearances as a crime against humanity is not a
novel approach. The Convention defines forced disappearance in
much the same way as the Statute of the International Criminal
Court.[47]

Even before the instruments
discussed above specifically labeled disappearances as a crime
against humanity, there was support for such a notion. Although
the Nuremberg Charter did not expressly enumerate enforced
disappearances as a crime against humanity, the Tribunal
convicted Wilhelm Keitel of this crime, invented by Adolph
Hitler.[48]
And the UN Declaration on the Protection
of All Persons from Enforced Disappearances, written before the
instruments discussed above, states that the "systematic
practice of [enforced disappearance] is of the nature of a crime
against humanity."[49]

The crime of enforced
disappearance has always been a crime of severe magnitude, and is
now firmly established as a crime against humanity. The facts
surrounding the situation in Sri Lanka show that this crime was
committed and must be treated as a crime against humanity.

d. Other crimes

Related to the crime of murder,
yet a crime in its own right, is that of extermination. In
addition to appearing in the Nuremberg Charter, extermination is
also enumerated as crime against humanity in the Statute on
Rwanda[50]
and the Draft Code of Crimes Against the
Peace and Security of Mankind.[51]
The commentary in the International law
Commission Report accompanying the Draft explains that
extermination, by its nature, is directed against a group of
individuals. It states

In addition, the act used
to carry out the offense of extermination involves an
element of mass destruction which is not required for
murder. In this regard, extermination is closely related
to the crimes of genocide in that both crimes are
directed against a large number of victims. However, the
crime of extermination would apply to situations that
differ from those covered by the crime of genocide.
Extermination covers situations in which a group of
individuals who do not share any common characteristics
are killed. It also applies to situations in which some
members of a group are killed while others are spared.[52]

Large groups of people were
rounded up and killed in Sir Lanka. Although perhaps not fully
aware of the legal definition, government officials specifically
discussed their goal of exterminating JVP " You cannot
do these things under the normal law. It takes a lot of time. By
the time my good friends who are lawyers take time to solve these
things the match will be over We have finished the first
eleven and the second eleven. Now we are tackling the under
fourteen fellows.[53]

The crime of arbitrary
imprisonment was also committed in Sri Lanka. After being
abducted, the victims were normally kept in illegal detention
centers in violation of all legal rights for varying lengths of
time before their execution. The Statute on the International
Criminal Court also includes "[i]mprisonment or other severe
deprivation of physical liberty in violation of fundamental rules
of international law";[54]
the Statute on Rwanda includes
imprisonment in the context of widespread or systematic attack
against civilian population on national, political, ethnic,
racial or religious grounds;[55]
and the Draft Code of Crimes against the
Peace and Security of Mankind lists "arbitrary
imprisonment" as a crime against humanity.[56]
The situation in Sri Lanka satisfies all
three instruments.

Finally, because the
government's intent was to remove political opposition, the crime
of "persecution on political, racial, religious or ethnic
grounds" was committed in Sri Lanka. This has been
characterized as a crime against humanity in the Nuremberg
Charter,[57]
Nuremberg Principles,[58]
Statute on Rwanda,[59]
and the Draft Code of Crimes Against the
Peace and Security of Mankind.[60]
The Draft Code explains that

The inhumane act of
persecution my take many forms with its common
characteristic being the denial of the human rights and
fundamental freedoms to which every individual is
entitled without distinction as recognized in the Charter
of the United Nations (Articles 1 and 55) and the
International Covenant on Civil and Political rights
(article 2).[61]

The victims of disappearances in
Sri Lanka were denied of every basic right, and were clearly
persecuted. The crime of persecution provides yet another basis
for calling the actions by the government in Sri Lanka a crime
against humanity.

C. The actions of the
government constitute gross violation of human rights

The disappearances in Sri Lanka
must surely be classified among the "gross violations of
human rights" condemned by Secretary General Kofi Annan.
During last years Human Rights Commission meeting, he
stated:

No government has the
right to hide behind national sovereignty in order to
violate the human rights or fundamental freedoms of its
peoples. Whether a person belongs to the minority or the
majority, that persons human rights and fundamental
freedoms are sacred.[62]

Although the statement was made
in the context of dealing with minorities, the meaning is clear.
Governments and their officials will be held accountable for the
atrocities they commit against their own people.

D. The situation of
child victims must be addressed

Although the actions in Sri Lanka
obviously violate numerous other conventions relating to the
rights of adults,[63]
it is the violation of those conventions
protecting the rights of children that is most disturbing. States
are to extend particular care and assistance to children under
international instruments such as the Convention on the Rights of
the Child;[64]
Declaration of the Rights of the Child;[65]
Universal Declaration of Human Rights;[66]
International Covenant on Civil and
Political Rights;[67]
and the International Covenant on
Economic, Social and Cultural Rights.[68]
In particular, children should not be
punished or discriminated against based on status, activities,
expressed opinions, or beliefs of family members.[69]
Not only were children in Sri Lanka not
given "particular care," they did not even receive the
basic, minimum rights guaranteed to adults. Other provisions
concerning children, such as those securing education and social
security, have no chance of being attained in a climate where
childrens lives are at risk.

Article 37 of the Convention on
the Rights of the Child is particularly applicable. It provides
that

"No child shall be
subject to torture or other cruel, inhuman or degrading
treatment or punishment";[70]

"No child shall be
deprived of his or her liberty unlawfully or
arbitrarily" and that the "arrest, detention or
imprisonment of a child shall be in conformity with the
law and shall be used only as a measure of last resort
and for the shortest appropriate period of time";[71]

"Every child deprived
of liberty shall be treated with humanity and respect for
the inherent dignity of the human person, and in a manner
which takes into account the needs of persons of his or
her age";[72]
and

"Every child deprived
of liberty shall have the right to legal and other
appropriate assistance."[73]

Every one of these rights was
violated by the forced disappearances and murders in Sri Lanka.
The enforced disappearance and extrajudicial killing of thousands
of children requires action by the international community.

IV. The situation in Sri Lanka
requires action by the international community

A. Need for criminal
investigation

Three commissions have been
established within Sri Lanka, but to no avail. The commissions
have made their recommendations, but no legislation has been
considered for implementing them.[74]
All three commissions have recommended a
special prosecutor. However, this will be of little use because
the two functions of investigation and prosecution are separate
under Sri Lanka law, and the system is currently incapable of
properly performing these investigations. The collapse of the
integrity of the system has made accurate investigation of
perpetrators impossible.

During the height of the
disappearances, police did not carry out investigations due to
the complicity of many police and government officials. Although
control of the government has changed hands, many lower level
officials and police officers still retain their positions.
During a discussion of police involvement, several people
commented to one of the commissions that being a good police
officer invites trouble, and such officers become victims of
unjust transfers and other forms of discrimination. Because
people close to powerbrokers are appointed to various
commissions, it becomes impossible to challenge an unfair
transfer order. Even when officers have been transferred, the
structural damage to the system has thwarted the search for the
truth. Sasanka Perera, a university lecture, concluded,
"People [the police officers] were transferred out, but the
institution remained the same. Policemen did not know how to
investigate."[75]
The system has broken down to such an
extent that the country is no longer able to investigate even
normal crimes, let alone ones so serious as the disappearances.

The Sri Lankan justice system, as
it exists now, is unable to handle adequately the criminal
investigation and to foster a sense of justice among the
population. One of the Commission reports states

Most of the Complainants
do not seem to be interested in receiving compensation as
much as seeing those responsible being punished. Some of
such persons continue to be serving in the very same
areas [,] some in higher positions than before. The
anguish and anxiety of the complainants, who keep asking
us what happened after the inquiry, is understandable as
no action appears to have been taken against the persons
whom they have mentioned as responsible at the inquiries
before this Commission.[76]

The result of the
governments use of the entire legal enforcement machinery
in its campaign of mass disappearances is a system that cannot
recover without outside assistance.

B. Role of the international
community

Action by the international
community is needed at several levels. First, the United Nations
Working Group on Enforced and Involuntary Disappearances can
conclude that the disappearances are crimes against humanity and
take action on this basis. In the past, the recommendations of
the Commission concerning Sri Lanka have largely been ignored.
The United Nations Working Group agreed in a 1999 recommendation
to take up the issue of a criminal investigation, but little
progress has been made. To resolve the crimes committed in Sri
Lanka, the Commission must take a stronger and more active
position, namely advocating establishing a tribunal.

The United Nations High
Commissioner for Human Rights can also play a part in redressing
these crimes by first seeking a mandate from the United Nations
Human Rights Commission and the Security Council to proceed on
the matter of disappearances in Sri Lanka on the basis that a
crime against humanity has taken place. The Secretary General
likewise can appeal to the Security Counsel for a tribunal to be
established, both on the basis of the situation in Sri Lanka
being a crime against humanity and a gross violation of human
rights.

To establish a Tribunal, the
United Nations can either get the consent of the Sri Lankan or
get a resolution from the Security Council. The Sri Lankan
government has shown a commitment to try these crimes, and should
be amenable to allowing the United Nations to take control. The
government has the desire to rectify the situation--it has made a
commitment to both the United Nations and to the Sri Lankan
people to bring the perpetrators to justice--but it needs
assistance in restoring order within its legal system.

At this point, two alternatives
are available: abandoning these cases without remedies or trying
the cases under international law by a Tribunal established by
the United Nations. When one considers the seriousness of the
crime, however, only one alternative is viable. The victims of
the disappearances were robbed of their most basic rights, were
tortured, were murdered, and were even robbed of a proper burial.
Their families have suffered the psychological trauma of not
knowing what happened to their loved ones, and continue to
suffer, along with the justice system of Sri Lanka, as long as
the perpetrators go unpunished. The only solution is to establish
an international tribunal and restore the system of justice in
Sri Lanka.

Laura Black
, the primary author of this piece,
recently graduated, cum laude, from Harvard Law School.
She also holds a B.A. in economics, summa cum laude, from
Bucknell University.

The information in this paper
comes primarily from the following reports: The Final
Report of the Commission of Inquiry into Involuntary
Removal or Disappearance of Person in the Western,
Southern and Sabaragamuwa Provinces (Sept. 1997)
[hereinafter Final Report of Western]; Final Report of
the Commission of Inquiry into the Voluntary Removal or
Disappearance of Persons in the Northern & Eastern
Provinces (Sept. 1997) [hereinafter Final Report of
Northern]; and Interim Reports of the Commission of
Inquiry into the Voluntary Removal or Disappearance of
Persons in the Central, North Western, North Central and
UVA Provinces (Sept. 1997) [hereinafter Interim Report of
Central].
>Back to text

"Torture chambers"
existed at the following locations: St. Sylvester's
College at Kandy; YMCA at Welimada; Community Centre
(Praja Salawa) at Moneragala; Sudampaya at Anamaduwa;
Hali Ela Motors at Badulla; Beragala Army Camp, Haputale;
Paddy Marketing Board Stores at Walapane; and St. Ritas
Camp, Nuwara Eliya. Interim Report of Central, Interim
Report--VII, p 20. Back
to text

In light of a statistic that 14%
of the disappearances involved children below the age of
15, Mrs. Muttetuwegama asked, "Can the war theory,
which maintains that the police and military acted in
self-defence, stand in the face of these naked
statistics?" Interim Report of Central, Interim
Report, p 15. Back
to text

Interim Report of Central, Interim
Report--II, p. 4, pt. F ("When persons went to the
Police Station to complain about the removals they were
usually driven away and their complaints were not
recorded.") and g ("complaints of abductions in
most cases had been entered in the Minor Offenses
Information Book of the Police Station"). Back to text

Blaskic was charged with trying to
ethnically cleanse central Bosnia of Muslims. He was
found guilty of all but one of 20 counts of crimes
against humanity, war crimes and grave breaches of the
1949 Geneva Convention. "Hague tribunal sentences
Bosnian general," and "General guilty of Bosnia
war crimes," BBC News, available at
<<news2.thls.bbc.co.uk/hi/english/world/europe/newsid%5F665000/665158.stm>>
(visited 3/6/2000). Back
to text

According to an official report by
the civilian government that succeeded Pinochet, 3,197
people were killed or disappeared under his rule after he
seized power in 1973 in a bloody coup against elected
Marxist president Salvador Allende, available at <<
www.cnn.com/2000/WORLD/europe/03/02/pinochet.05/index.html
>> (visited March
3, 2000); and House of Lords, Regina v. Bartle and the
Commissioner of Police for the Metropolis and Others Ex
Parte Pinochet, Regina v. Evans and Another and the
Commissioner of Police for the Metropolis and Others Ex
Parte Pinochet (On Appeal from a Divisional Court of
the Queen's Bench Division) (24 March 1998),
available at
<<www.parliament.the-stationery-office.co.uk/pa/ld/ldhome.htm>>
(visited March 9, 2000). Back to text

Rome Statute of the International
Criminal Court [as corrected by the procés-verbaux of 10
November 1998 and 12 July 1999], Part 2, Art. 7(1).
"Attack against any civilian population"
means a course of conduct involving the multiple
commission of acts referred to in paragraph 1 against any
civilian population pursuant to or in furtherance of a
State or organization policy to commit such attack."
Id. At Part 2(2)(a). Back to text

Resolution 955 Concerning the
Establishment and Statute of the International Criminal
Tribunal for Rwanda, S/RES/955 (1994), 8 November 1994
(Adopted by the Security Council at its 3453rd
meeting, on 8 November 1994), Art. 3. Back to text

Principles of the Nuremberg
Tribunal, 1950, No. 82
Principles of Law Recognized in the Charter of the
Nuremberg Tribunal in the Judgment of the Tribunal.
Adopted by the International Law Commission of the Untied
Nations, 1950, Principle VI (c). Back to text

International Law Commission
Report, 1996, Draft Code of Crimes Against the Peace and
Security of Mankind, Chpt. II, Commentary, Pt. 6 (citing,
inter alia, Prosecutor v. Dusko Tadic,
Decision of the Appeals Chamber on the Defence Motion for
Interlocutory Appeal on Jurisdiction, p. 73 ("It is
by now a settled rule of customary law that crimes
against humanity do not require a connection to
international armed conflict."); and Pinochet, House
of Lords, opinion of Lord Browne-Wilkinson, (citing Oppenheim's
International Law (Jennings and Watts edition), vol.
1, 996; note 6 to Article 18 of the I.L.C. Draft Code
of Crimes Against Peace; Prosecutor v. Furundzija,
Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T),
opinion of Lord Slynn, and opinion of Lord Millet.
Back to
text

A recent article by Human Rights
Watch also notes this expansion in the notion of crimes
with universal jurisdiction. "The Pinochet
Precedent: How Victims Can Pursue Human Rights Criminals
Abroad," March 2000, Human Rights Watch, available
at <<
http://www.hrw.org/
>> (visited
3/2/2000) ("Since the end of World War II, the list
of crimes giving rise to universal jurisdiction has grown
to include many atrocities committed within national
borders, such as genocide, torture, 'apartheid' and other
'crimes against humanity.'").
>Back to text

Convention Against Torture and
Other Cruel, Inhuman or Degrading treatment or
Punishment, adopted and opened for signature,
ratification and accession by General Assembly resolution
39/46 of 10 Dec. 1984 (entered into force 26 June 1987),
Part I, Art. 1. Back to text

Resolution concerning the
establishment and statute of the International Criminal
Tribunal for Rwanda, S/RES/955(1994), 8 November 1994
(Adopted by the Security Council at its 3453rd
meeting, in November 1994.
>Back to text

Draft Code of Crimes Against the
Peace and Security of Mankind, Art. 18. The Commentary
noted that "[a]lthough this type of criminal conduct
is a relatively recent phenomenon, the present Code
proposes its inclusion as a crime against humanity
because of its extreme cruelty and gravity."
International Law Commission Report, 1996, Chpt. II, Art.
18, Commentary, pt. 15.
>Back to text

Inter-American Convention on
Forced Disappearance of Persons (entered into force March
29,1991), Preamble, on deposit with OAS General
Secretariat, available at
<<http://www.cidh.org/basic.htm>> (visited on
3/9/2000). Back to
text

For the
purposes of this Convention, forced disappearance is
considered to be the act of depriving a person or
persons of his or their freedom, in whatever way,
perpetrated by agents of the state or by persons or
groups of persons acting with the authorization,
support, or acquiescence of the state, followed by an
absence of information or a refusal to acknowledge
that deprivation of freedom or to give information on
the whereabouts of that person, thereby impeding his
or her recourse to the applicable legal remedies and
procedural guarantees.

Amnesty International- Report- EUR
45/01/99, "United Kingdom: The Pinochet
Case--Universal Jurisdiction and the Absence of Immunity
for Crimes Against Humanity (January 1999), p. 7 (citing
Judgment of the International Military Tribunal for the
Trial of German Major War Criminals (with the dissenting
opinion of the Soviet Member)- Nuremberg 30th
September and 1st October 1946, Cmd. 6964,
Misc. No. 12 (London: H.M.S.O. 1946), pp. 48-49))
available at <<
www.amnesty.org/ailib/aipub/1999/EUR/44500199.htm
>> (visited
2/16/2000).
>Back to text

Draft Code of Crimes Against the
Peace and Security of Mankind, art. 18(e). The Commentary
to the Code also lists the Nuremberg Control Council Law
No. 10, art. II, para. C, and the 1954 Draft Code, art.
2, para. 11, as providing that this crime constitutes a
crime against humanity. International Law Commission
Report, 1996, Chpt II, Draft Code of Crimes Agaisnt the
Peace and Security of mankind, Art 18, Commentary, pt.
11.
>Back to text

Press Release SG/SM/6949
HR/CN/898, "Secretary-General Calls for renewed
Commitment in New Century to Protect Rights of Man,
Woman, ChildRegardless of Ethnic, National
Belonging" (7 April 1999). Back to text

See, e.g.,
>
International Covenant on Civil
and Political Rights, art. 10(1) ("All persons
deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human
person."); and Body of Protection of all Persons
under any Form of Detention or Imprisonment (adopted 9
December 1988), Principle 1 ("All persons under any
form of detention or imprisonment shall be treated in a
humane manner with respect for the inherent dignity of
the human person.") Back to text

Interim Report of Central, Interim
Report--VII, p. 18 ("There appears to be very little
progress in implementing the recommendations of the
Commission especially with regard to the action to be
taken against persons against whom credible material
indicative of such persons being responsible for the
removals and/or disappearances, have been made available
to the Commission.") Back to text